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I-9 E-Verify Immigration Compliance

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  1. ICE Workplace Raids Continue in Nebraska and Minnesota

    By: Bruce Buchanan, Sebelist Buchanan Law



    On August 8, 2018, in a multi-state operation, covering Nebraska and Minnesota, Immigration and Customs Enforcement痴 (ICE) Homeland Security Investigations (HSI), raided numerous workplaces serving a series of criminal search warrants and criminal arrest warrants. The raids were the result of a 15-month investigation into companies allegedly knowingly hiring undocumented workers, who were using fraudulent identification belonging to U.S. citizens.

    As a result of these raids, 17 individuals were arrested for an alleged criminal conspiracy to exploit illegal alien laborers for profit, fraud, wire fraud and money laundering in Nebraska and Minnesota. HSI believes the alleged conspirators colluded to create an illegal alien workforce in their respective businesses. In addition to these arrest warrants, authorities also identified 133 employees who were subject to arrest for immigration violations and were unlawfully working at these businesses. These individuals had been illegally residing and working in the United States and may also have been exploited as part of this alleged criminal conspiracy.

    By colluding to create an illegal alien workforce in their respective businesses, the 17 individuals defrauded the U.S. government and created an unfair advantage over their competition businesses. Additionally, authorities suspect the illegal aliens who were knowingly hired as part of this alleged conspiracy were exploited by the conspirators through force, coercion, or threat of arrest and/or deportation. Specifically, these illegal aliens were allegedly required to cash their paychecks at an illegal remittance business for a fee, have tax money deducted from their pay even though this money was never paid to the government, and were coerced to remain quiet about this criminal activity.

    Search warrants were served at the following businesses and locations:

    Christensen Farms in Appleton, Minnesota; Sleepy Eye, Minnesota; and Atkinson, Nebraska;

    Elkhorn River Farms in O誰eill, Nebraska;

    O誰eill Ventures in O誰eill, Nebraska;

    La Herradura Restaurant in O誰eill, Nebraska;

    El Mercadito in O誰eill, Nebraska;

    La Herradura Restaurant in Stromsburg, Nebraska;

    GJW LLC with three locations in Ainsworth, Nebraska;

    J.E. Meurets Grain Company in Ainsworth, Nebraska; and

    Herd Co. Cattle Company in Bartlett, Nebraska.

    典he job magnet in the United States is primarily what draws illegal aliens across our borders, said Special Agent in Charge Tracy J. Cormier, HSI St. Paul, which oversees Nebraska and Minnesota. 典his HSI-led criminal investigation has shown that these targeted businesses were knowingly hiring illegal workers to unlawfully line their own pockets by cheating the workers, cheating the taxpayers, and cheating their business competitors.

    The illegal aliens who remain in ICE custody after being administratively arrested on immigration violations will be transported to a nearby processing facility and placed in removal proceedings. Detained aliens will be held in facilities in Nebraska and Minnesota while awaiting removal proceedings.

    These workplace raids are a continuation of the new policy in the Trump administration of a return to workplace raids. Earlier this year, ICE conducted raids in Tennessee and Ohio. It is expected these ICE raids will continue throughout the Trump administration.

    If you want to know more information on methods to defend yourself from workplace raids and other issues involving employer immigration compliance, I recommend you read The I-9 and E-Verify Handbook, a book I co-authored with Greg Siskind, and available at http://www.amazon.com/dp/0997083379.
  2. Sheriff Arpaio痴 Unlawful Actions Lead Court to Find Frimmel Has No Liability

    By: Bruce Buchanan, Sebelist Buchanan Law PLLC




    Just when you thought Sheriff Joe Arpaio could not cause further trouble because he痴 out of office, he strikes again in an immigration case.

    This case centers on a Notice of Inspection (NOI) that was delivered to Frimmel Management after Sheriff Arpaio痴 police force, Maricopa County Sheriff痴 Office (MCSO), conducted raids of two Uncle Sam痴 restaurants and the owner痴 home. MCSO seized employment records based on suspicion that the restaurants workers committed identity theft and forgery. During the State of Arizona痴 prosecution of Frimmel, the state court found the affidavits supporting the search warrant for the raids were 砥nreasonable and reckless. Therefore, the Court dismissed the charges against Frimmel.

    One day after MCSO痴 raids, MCSO sent a memorandum to ICE summarizing the results of the unlawful raid. Thereafter, MCSO issued press releases publicizing their raids and stated some of the workers had been put on ICE holds.

    About two and one-half weeks after the raids, ICE served a NOI/subpoena on Frimmel. After Frimmel timely produced the restaurants I-9 forms, ICE issued a Notice of Intent to fine (NIF) and a complaint for the case to be heard by an OCAHO Administrative Law Judge.

    In response to Frimmel痴 objections, this ALJ found that how Frimmel had come to the attention of ICE was 妬rrelevant to the OCAHO case. Frimmel also argued the I-9 forms must be suppressed under the fruit of the poisonous tree doctrine. The ALJ disagreed and found ICE had not relied on any 兎vidence directly obtained from MCSO痴 unlawful conduct. Since the primary goal of suppressing evidence based on illegal conduct is to deter future unlawful police conduct, this was not a factor in question in the ICE痴 NOI of Frimmel. Thus, the ALJ upheld the $347,000 penalty.

    On appeal to the 9th Circuit Court of Appeals, the Court initially reviewed MCSO痴 conduct. It found that MCSO痴 omissions and distortions in the affidavits for the search warrant were 途eckless and immaterial. Thus, this finding led the 9th Circuit to find the raids violated the 4th Amendment to the Constitution.
    Furthermore, the Count found MCSO痴 conduct to be egregious.

    Despite those findings, DHS argued the 的CE investigation was too attenuated from MCSO痴 illegal conduct Under the attenuation doctrine, evidence is admissible when 鍍he connection between the illegality and challenged evidence has become so attenuated as to dissipate the taint caused by the illegality.

    The Court rejected that argument and found there was a causal connection between MCSO痴 unlawful search and the ICE audit. The identity evidence Frimmell and his restaurants resulted from MCSO痴 raid, which 都ignificantly directed the subsequent ICE investigation. Thus, the I-9 forms which ICE seized were fruit of MCSO痴 illegal search.

    In conclusion, the 9th Circuit found for Frimmel because ICE used the fruit of the poisonous tree the I-9 forms. Thus, Frimmell did not owe the $347,000 that OCAHO had found as penalties.

    Although very few cases get litigated to the Court of Appeals, companies continue to have some success in appeals to the Courts of Appeal. Several years ago, the 5th Circuit Court of Appeals reversed OCAHO痴 $227,000 penalty against Employer Solutions Staffing Group II, LLC.

    If you want to know more information on employer immigration compliance, I recommend you read The I-9 and E-Verify Handbook, a book I co-authored with Greg Siskind, and available at http://www.amazon.com/dp/0997083379.
  3. IER Settles Immigration-Related Discrimination Claim Against Rose Acre

    By: Bruce Buchanan, Sebelist Buchanan Law



    The Immigrant and Employee Rights Section (IER), a part of the Civil Rights Division of the Justice Department, has reached a settlement with Rose Acre Farms Inc, one of the largest egg producers in the United States. The settlement resolves a long-standing lawsuit filed by the IER and the Justice Department alleging Rose Acre violated the Immigration and Nationality Act (INA) by discriminating against work-authorized non-U.S. citizens when verifying their work authorization.

    The Department痴 amended complaint alleged that from at least June 2009 to December 22, 2011, Rose Acre routinely required work-authorized non-U.S. citizens to present a Permanent Resident Card or Employment Authorization Document to prove their work authorization but did not require specific documents from U.S. citizens. All work-authorized individuals, whether U.S. citizens or non-U.S. citizens, have the right to choose which valid documentation to present to prove they are authorized to work. Employers may not dictate which document(s) may be presented. The anti-discrimination provision of the INA prohibits employers from subjecting employees to unnecessary documentary demands based on employees citizenship or national origin.

    Under the settlement, Rose Acre will pay a civil penalty of $70,000 to the U.S. government; train its human resources personnel on their legal obligations to not discriminate by viewing a free online IER webinar presentation; revise any existing employment policies so that they prohibit discrimination based on citizenship, immigration status, and national origin in the hiring processes; and be subject to departmental monitoring for two years.

    For answers to many other questions related to the IER and immigration compliance, I invite you to read The I-9 and E-Verify Handbook, a book that I co-authored with Greg Siskind, and is available at http://www.amazon.com/dp/0997083379.
  4. DOJ and DOL in New Partnership to Protect U.S. Workers from Discrimination

    By: Bruce Buchanan, Sebelist Buchanan Law




    In a continuation of President Trump痴 Buy American, Hire American Executive Order, the Department of Justice痴 Civil Rights Division and the Department of Labor痴 (DOL) Employment and Training Administration expanded their collaboration to better protect U.S. workers from discrimination by employers that prefer to hire temporary visa workers over qualified U.S. workers.

    This partnership enhances the Civil Rights Division痴 efforts to stop companies from discriminating against U.S. workers and assists the Department of Labor痴 Employment and Training Administration in identifying noncompliance with its foreign labor certification process. The signed Memorandum of Understanding (MOU) establishes protocols for the agencies to share information, refer matters between them, and train each other痴 employees.

    The Civil Rights Division has increased its collaboration with other federal agencies, including the Departments of State and Homeland Security, to combat discrimination and abuse by employers improperly using temporary visa workers. Today痴 MOU expands on the Division痴 existing partnership with DOL.

    摘mployers should hire workers based on their skills, experience, and authorization to work; not based on discriminatory preferences that violate the law, said Acting Assistant Attorney General John Gore of the Civil Rights Division. 徹ur partnership with DOL, formalized today, significantly enhances the Civil Rights Division痴 ability to identify employers that favor temporary visa holders over U.S. workers who can do the job.

    For answers to many other questions related to immigration compliance, I invite you to read The I-9 and E-Verify Handbook, a book that I co-authored with Greg Siskind, and is available at http://www.amazon.com/dp/0997083379.
  5. Federal Judge Rules For and Against DOJ in Lawsuit Against California

    By: Bruce Buchanan, Sebelist Buchanan Law



    On July 5, 2018, Federal District Court Judge John Mendez of the Eastern District of California, struck down provisions of AB 450, the Immigrant Worker Protection Act (IWPA), that restricted employers from allowing Immigration and Customs Enforcement (ICE) agents to access nonpublic parts of a workplace without a warrant and re-verifying employee work authorization. However, the Judge upheld AB 450's requirement that employers notify employees within 72 hours of I-9 inspections that have been conducted.

    As you may recall from prior blog entries, AB 450 (IWPA) states California-based employers:


    • Are prohibited from voluntarily granting immigration enforcement agents access to any non-public areas of a worksite unless the agents present a judicial warrant;
    • Are prohibited from voluntarily allowing ICE agents to access, review, or obtain any employee records unless the agents present a Notice of Inspection (NOI) of Forms I-9, an administrative or judicial subpoena, or a judicial warrant requiring compliance;
    • Are prohibited from reverifying the employment eligibility of any current employee unless required by federal law;
    • Are required, if served with an I-9 NOI, to give notice in writing within 72 hours to each current employee at the worksite and any authorized labor union that an I-9 inspection has begun; and
    • Must notify any affected employee or authorized union representative within 72 hours of receiving any subsequent I-9 related federal notices, such as Notice of Suspect Documents.


    In March 2018, the Department of Justice (DOJ) sued California alleging AB 450 and two other new state laws designed to protect certain undocumented immigrants are unconstitutional. "The provisions of state law at issue have the purpose and effect of making it more difficult for federal immigration officers to carry out their responsibilities in California," Justice Department lawyers argue in the suit, further calling the laws an "obstacle to the United States' enforcement of the immigration laws and discriminating against federal immigration enforcement."

    Judge Mendez ruled against a preliminary injunction on the AB 450 Notice requirements because they are not preempted by federal authority over immigration. However, the Judge preliminarily enjoined California authorities from:


    • fining employers or otherwise enforcing the bans on reverifying the employment eligibility of current employees;
    • voluntarily giving immigration enforcement agents access to nonpublic areas of the worksite; or
    • allowing them to access, review, or obtain employee records.


    In doing so, Judge Mendez requested the President and Congress to act and stated:
    This Court has gone to great lengths to explain the legal grounds for its opinion. This Order hopefully will not be viewed through a political lens and this Court expresses no views on the soundness of the policies or statutes involved in this lawsuit. There is no place for politics in our judicial system and this one opinion will neither define nor solve the complicated immigration issues currently facing our Nation.

    Accordingly, this Court joins the ever-growing chorus of Federal Judges in urging our elected officials to set aside the partisan and polarizing politics dominating the current immigration debate and work in a cooperative and bi-partisan fashion toward drafting and passing legislation that addresses this critical political issue. Our Nation deserves it. Our Constitution demands it.

    I will keep you informed of further developments in this litigation.
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